Howell v Srinivasan

[2025] VSC 414

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL COURT

S ECI 2022 02230

MALCOLM KIMBAL HOWELL	Plaintiff
v
SUNNY SRINIVASAN	Defendant

---

JUDGE:	Cosgrave J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	11 July 2025
CASE MAY BE CITED AS:	Howell v Srinivasan
MEDIUM NEUTRAL CITATION:	[2025] VSC 414

---

PRACTICE AND PROCEDURE — Application for leave to file a notice of solicitor ceasing to act — Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 20.03(3)(b) — Where proceeding set down for trial — Where client did not provide solicitor with sufficient funds to conduct the trial — Where application was made one week prior to trial — Court has a broad discretion — Leave granted.

---

APPEARANCES:	Counsel	Solicitors
For the Defendant	Ms M Stevenson	NOH Legal

HIS HONOUR:

Introduction

1. On 7 July 2025, the solicitors for the defendant, NOH Legal, advised the Court that it sought leave to file a notice of ceasing to act for the defendant. Generally, a solicitor can file such a notice at any time without involving the Court, provided the solicitor complies with the requirements of rr 20.03(1) and (2) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). However, leave is required if the solicitor seeks to give the notice after the proceeding has been set down for trial.[1] This proceeding is set down for trial on 15 July 2025. 

   [1]Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 20.03(3)(b).

1. NOH Legal supported its application with a confidential affidavit sworn by Omar El‑Hissi, the principal of the firm. The affidavit gives some detail as to various communications between Mr El‑Hissi and the client. I infer that the request for confidentiality is to avoid the possibility of breaching the legal professional privilege which exists between solicitor and client. Accordingly, I shall not engage in a detailed discussion of the material.

1. In substance, NOH Legal seeks leave to cease acting for the defendant because the client has not provided the firm with sufficient funds to conduct the trial. NOH Legal is not prepared to instruct at trial or to engage counsel to appear at the trial without funds in trust.

Legal principles

1. The relevant principles have been considered in a number of cases within the Court: Investec Bank (Australia) Ltd v Mann (“Investec”);[2] Bodycorp Repairers Pty Ltd v Maisano (No 2);[3] LD Family Holdings Pty Ltd v Iceland Cold Storage Australia Pty Ltd;[4] and Swindells v Victoria.[5] 

   [2][2012] VSC 81 (“Investec”).

   [3][2013] VSC 235.

   [4][2022] VSC 439.

   [5][2016] VSCA 9.

1. The position can be summarised as follows:

(a)   the solicitor should serve the application on the party for whom the solicitor acts but need not serve it upon any other party or parties to the proceeding;[6]

[6]Investec (n 2) at [7].

(b)  generally speaking, a solicitor who is unable to get instructions or funding from the client is entitled to cease acting for that client;[7]

[7]Ibid at [2].

(c)   the Court retains a broad discretion about whether or not to grant leave;[8]

[8]Ibid at [3].

(d)  usually, the Court will grant the application but the Court may refuse leave where there are special circumstances which render it expedient to retain the solicitor on the record;[9]

[9]Ibid.

(e)   the solicitor seeking leave to cease acting bears the burden of satisfying the Court that it is appropriate to grant leave;[10]

(f)    while a solicitor remains on the record, the solicitor and client are expected to comply with Court orders even if they have no funding — the lack of funds does not absolve a solicitor from complying with Court orders;[11] and

(g)  when making such an application, solicitors should be mindful of their duties to the Court, their client or former client, and to the other parties and their legal advisors.[12]

[10]Ibid at [7].

[11]Ibid at [2].

[12]Ibid at [7].

Analysis

1. Initially on 10 April 2024 the Court fixed this proceeding for trial on 15 July 2025.  Later in October 2024, the Court advised the parties that this was a “not before” date.  The Court last varied the orders for the filing of opening submissions on 2 May 2025 (“the May Orders”).  Then, on 13 June 2025 at a directions hearing, the Court confirmed that the trial would commence on 15 July 2025. 

1. The defendant has satisfied a number of the timetabling orders for the scheduled trial. According to Mr El‑Hissi, he communicated with the defendant on numerous occasions both before and after the making of the May Orders to explain what was required in connection with the litigation. It appears that Mr El‑Hissi discussed the question of the defendant paying funds into trust to finance the solicitors to conduct the trial. He advised the defendant of the consequences of not providing funding.

1. The main issue of concern created by the application is that the solicitor is making it only one week before the trial is scheduled to commence. In Investec, Pagone J observed that practitioners “ought to guard against the possibility of the Court finding itself with unrepresented litigants close to the hearing date”.[13] The evidence does not explain all the steps which Mr El‑Hissi took to avoid any inconvenience to the Court, the plaintiff and the plaintiff’s solicitors if leave were given. 

   [13]Ibid at [8].

1. In Investec, the parties had known since 9 December 2011 that the trial was set to commence on 13 March 2012. Although the solicitors as at 2 March 2012 were already owed at least $135,000 for outstanding work and work in progress, they did not request that the client put funds into the trust account for the trial until that day. His Honour refused the application for leave to cease acting partly because the solicitors were dilatory in seeking the funds, and partly because one of the two clients was not resident within the jurisdiction.

1. In the present case, the aim of the various interlocutory orders was to have the case ready for trial before 15 July 2025. While that date (for a period) was a “not before” date, the purpose of the orders did not change. The solicitor’s affidavit indicates an awareness in May 2025 of the need to be ready for trial in July. The trial date was explicitly confirmed on 13 June. In the circumstances, Mr El‑Hissi has not explained satisfactorily why he has delayed until now in making this application. Perhaps one reason — although he does not swear to this in his affidavit — was that he was not certain until last month that the trial would proceed on the indicative date.

1. The defendant resides within the jurisdiction and his address is set out in Mr El-Hissi’s affidavit. Mr El-Hissi has also provided the email address which he uses to communicate with the client. Mr El-Hissi has sent recent correspondence to the defendant and, hence, the defendant should be aware of the trial date, the likely consequences of NOH Legal removing itself as the solicitor on record and this directions hearing.

1. Notwithstanding the lateness of the application, I am satisfied that, in all the circumstances, it is appropriate for the Court to grant leave to NOH Legal to cease acting for the defendant.

1. I say this for the following reasons:

·given that the defendant has provided only a small percentage of the amount sought to fund the trial, it is reasonable for NOH Legal both to not brief counsel for the trial and to cease acting for the defendant;

·while it would have been preferable for NOH Legal to have made the application sooner, in practical terms, the plaintiff will still effectively face the defendant as a self-represented litigant next week even if the solicitor remained on the record. While the solicitors might be asked to relay documents to the defendant or provide such other assistance as the Court requires, the firm cannot be required to conduct the trial on behalf of the defendant without funding. To that extent, it is unlikely that the plaintiff will be more disadvantaged in conducting the trial if NOH Legal formally ceases acting for the defendant. Whether or not NOH Legal is on the record, neither the firm nor any counsel retained by the firm will be acting for the defendant; and

·NOH Legal has offered to assist the Court if required by facilitating service of documents. The firm has also offered to assist with settlement negotiations.

Conclusion

1. For the reasons set out, I order that NOH Legal have leave to cease acting as solicitor for the defendant in this proceeding.